Levison v. Weintraub
| Citation | 521 A.2d 909,215 N.J.Super. 273 |
| Parties | Howard LEVISON and Karen Levison, Plaintiffs-Appellants, v. Richard WEINTRAUB and Patricia Weintraub, Defendants-Respondents. |
| Decision Date | 24 February 1987 |
| Court | New Jersey Superior Court – Appellate Division |
Howard S. Mitnick, for plaintiffs-appellants.
Norris, McLaughlin & Marcus, for defendants-respondents.
Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, for amicus curiae New Jersey Ass'n of Realtors (Arthur M. Greenbaum, of counsel and Arthur Greenbaum and Tod S. Chasin, on the brief).
Before Judges ANTELL, BRODY and D'ANNUNZIO.
The opinion of the court was delivered by
ANTELL, P.J.A.D.
On August 15, 1986 plaintiffs entered into a contract prepared by a real estate broker for the purchase of residential property owned by defendants. Jill Slattery, Esq., an attorney at law, signed the contract for defendants pursuant to a power of attorney executed July 21, 1986. It appointed her to "act as ... Agent (called an attorney in fact) to do each and every act which [they] could personally do ... with respect to signing of any and all documents pertaining to the sale of" the premises in question. Slattery then submitted the contract for review to a The following notice appears at the top of the first page of the contract signed by the parties hereto:
second attorney, Sanford Silverman, Esq., who registered his written disapproval thereof on August 18, 1986, within three days after the contract was signed. Defendants thereafter agreed to sell the property to another party at a higher price.
This is a legally binding contract that will become final within three business days. During this period you may choose to consult an attorney who can review and cancel the contract. See section on attorney review for details.
The section on attorney review is contained in Paragraph 19 and reads as follows:
ATTORNEY REVIEW
1. Study by attorney
The Buyer or the Seller may choose to have an attorney study this contract. If an attorney is consulted, the attorney must complete his or her review of the contract within a three day period. This contract will be legally binding at the end of this three day period unless an attorney for the Buyer or the Seller reviews and disapproves of the contract.
On August 22, 1986 plaintiffs filed this complaint for specific performance of the contract and their notice of lis pendens. The Chancery Division granted defendants' motion for summary judgment after oral argument on September 4, 1986. Plaintiffs appeal.
In challenging the order under review plaintiffs argue that the Chancery Division erred in its interpretation of the attorney review clause. They argue that execution of the contract on behalf of the sellers by an attorney constitutes "approval" thereof by the attorney, or at least raises a fact question thereof, and that later disapproval by another attorney, even though within the prescribed three day period, does not prevent formation of an enforceable contract. Supported by the New Jersey Association of Realtors, which has filed a brief amicus curiae, they contend that the Chancery Division's interpretation encourages abuse of the provision by allowing sellers, as happened here, to use a contract signed in good faith by a prospective buyer to obtain a better selling price from another. They further contend that the interpretation under review defeats the essential purpose of consumer protection for which the clause was designed and that it tends to disrupt the formation of broker-prepared contracts by needlessly protracting the period within which an enforceable contract may come into existence.
Defendants reply that to accept plaintiffs' advocated interpretation would effectually deprive any buyer or seller on whose behalf a contract is signed by an attorney/agent of the protection expressly provided by the clause. It would also appear that under plaintiffs' interpretation the three day review would not be available to any licensed attorney who signs such a contract on his own behalf. Moreover, it would provoke an endless flow of litigation requiring courts to resolve fact questions as to whether by signing on behalf of his or her principal an attorney/agent signifies approval of the contract so as to bar later disapproval within the meaning of the attorney review clause.
However these provocative policy considerations should be balanced, the governing language of the contract leaves no doubt as to its meaning. Where the terms of a contract are clear and unambiguous there is no room for interpretation or construction and we must enforce those terms as written. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43, 161 A.2d 717 (1960). We have no right "to rewrite the contract merely because one might...
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